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THIRD
SECTION
CASE OF TOMA v. ROMANIA
(Application
no. 1051/06)
JUDGMENT
STRASBOURG
24
January 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Toma v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall, President,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Mihai
Poalelungi,
Kristina
Pardalos, judges,
and
Santiago Quesada,
Section Registrar,
Having
deliberated in private on 4 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 1051/06)
against Romania lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Romanian
national, Mr Mihai Toma (“the applicant”), on
12 December 2005.
2. The
Romanian Government (“the Government”) were represented
by their Agent, Mr Răzvan Horaţiu Radu, of the Ministry of
Foreign Affairs.
3. As
Mr Corneliu Bîrsan, the judge elected in respect of Romania,
had withdrawn from the case (Rule 28 of the Rules of Court), the
President of the Chamber appointed Mr Mihai Poalelungi to sit as ad
hoc judge (Article 26 § 4 of
the Convention and Rule 29 § 1 of the Rules of Court).
4. The
applicant alleged, in particular, a violation of his rights
guaranteed by Articles 6 and 7 of the Convention, in so far as his
driving licence had been annulled almost ten years after the
events that could have given rise to that measure, and in application
of a law that was not available at the time of the events.
- On
12 May 2010 the President of
the Third Section decided to give notice of the application to
the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1948 and lives in
Târgu-Jiu.
- On
2 December 1995 the applicant was stopped by police for
drink driving. The police informed him on the spot that his
right to drive on the public roads was suspended for ninety days. The
driving licence was not physically removed from the applicant’s
possession.
- On
13 February 1996 the applicant was stopped by police while
driving a car and was committed to trial for the offence of driving
on public roads while his driving licence was suspended under Article
36 § 2 of Decree no. 328/1966 on driving on
public roads (“Decree no. 328/1966”).
- In
a decision of 5 June 1997 the Târgu-Jiu District Court
convicted the applicant of that offence and imposed on him a criminal
fine of 80,000 Romanian lei (ROL) and ordered him to pay ROL
40,000 in costs. It also informed the applicant that if he did not
comply with the payment order the fine could be converted into a
prison sentence (Article 63 of the Criminal Code). The decision
became final, as the parties did not appeal against it.
- On
15 December 2004 the applicant went to Gorj Road police station
to ask for his old driving licence to be replaced with the new model,
in accordance with the new requirements in the matter. On this
occasion, the police withdrew his driving licence and informed him
that it would be annulled, as the applicant had been stopped for
drink-driving in 1995.
- On
the same day the police informed the applicant that under
Article 101 § 1 (b) of Emergency Ordinance
no. 195/2002 his driving licence had been annulled with effect
from 9 December 2004. His objection to the annulment was
dismissed by Gorj County Police on 25 January 2005.
- On
10 March 2005 the applicant appealed before the Gorj County
Court, seeking the revocation of the annulment order.
- In
a decision of 15 April 2005 the County Court (Administrative Law
Section) allowed the action for the following reasons:
“Indeed, in the judgment of 5 June 1997 of the
Târgu-Jiu County Court ... the [applicant] was sentenced to pay
a fine of ROL 80,000 ... and under Emergency Ordinance no. 195/2002,
the driving licence stood to be annulled if the driver was convicted
of a traffic offence ...
Under Article 126 (c) of the Code of Criminal Procedure,
the enforcement of the criminal fine becomes statute-barred after
three years; therefore the annulment of the driving licence, being a
subsidiary penalty (pedeapsa accesorie), becomes
statute barred at the same time as the main penalty.
The time-limits are counted from the date when the
events occurred, therefore ... the penalty is at present
statute-barred.”
- The
Gorj County Police appealed, and in a final decision of 12 July 2005
the Craiova Court of Appeal (Administrative Law Section) reversed the
judgment and dismissed the applicant’s initial action, giving
the following grounds:
“The annulment of the driving licence is not a
subsidiary penalty, as the first instance court wrongly
considered; it represents an administrative measure with distinct
rules applicable to it that can only be imposed by the police.
Decree no. 328/1966 and Emergency Ordinance no. 195/2002
do not provide a time limit for the application of this measure;
moreover, in the applicant’s case the measure is applied
automatically, as he was criminally convicted for a traffic offence.”
II. RELEVANT DOMESTIC LAW
- Article 36 § 2
of Decree no. 328/1966 on driving on public roads criminalises
the offence of driving on public roads with a suspended driving
licence. The same Act provides that a driving licence may be annulled
if its owner has been convicted of a criminal offence under the
regulations on driving on public roads (Article 42 § 2). The
annulment is decided by the Head of the County Police once the
criminal decision is final (Articles 42 § 3 and
43).
- Decree
no. 328/1966 was abolished by Emergency Ordinance no. 195/2002,
which entered into force on 1 February 2003, and which in its
Article 101 § 1 (b) made the annulment of
the driving licence automatic. This Act was amended on several
occasions, but the relevant provision was in place on the date when
the final decision was rendered in the case at hand.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION
- The
applicant complained about the annulment of his driving licence. He
relied on Article 6 of the Convention. The Court considers that the
application may raise an issue under Article 7 of the Convention. It
reiterates that it is master of the characterisation to be given in
law to the facts and as it could decide to examine the complaint
submitted to it under more than one of the Convention’s
provisions (see Scoppola v. Italy (no. 2) [GC],
no. 10249/03, § 54, ECHR
2009 ...).
Article
7 of the Convention reads as follows:
“1. No one shall be held guilty of any
criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at
the time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the criminal
offence was committed.
2. This article shall not prejudice the trial
and punishment of any person for any act or omission which, at the
time when it was committed, was criminal according to the general
principles of law recognised by civilised nations.”
A. Admissibility
- The
Government contended that the measure imposed on the applicant did
not constitute a “penalty” within the meaning of
Article 7 and that therefore the complaint was incompatible
ratione materiae with the provisions of the Convention.
- The
applicant contested the Government’s position.
- The
Court reiterates that the concept of a “penalty” in
Article 7 of the Convention is, like the notions of “civil
rights and obligations” and “criminal charge” in
Article 6 § 1, an autonomous Convention concept.
The starting-point in any assessment of the existence of a penalty is
whether the measure in question is imposed following conviction for a
“criminal offence”. Other factors that may be taken into
account as relevant in this connection are the nature and purpose of
the measure in question; its characterisation under national law; the
procedures involved in the making and implementation of the measure;
and its severity (see Welch v. the United Kingdom,
9 February 1995, §§ 27-28, Series A no. 307 A).
- The
Court has established in the case Maszni v. Romania
(no. 59892/00, § 66, 21 September 2006) that
although the annulment of a driving licence is regarded by the
national law as an administrative measure, it constitutes rather a
criminal matter for the purpose of Article 6 of the Convention,
in so far as its severity gives it a punitive and dissuasive
character pertaining to criminal sanctions (see also Welch,
cited above, § 28; and Nilsson v. Sweden (dec.), no.
73661/01, 13 December 2005).
The
measure at issue in the present case should thus be seen as a
criminal penalty for the purpose of Article 7.
- It
follows that the exception raised by the Government is inadmissible
(see also Welch v. the United Kingdom, 9 February 1995, §
28, Series A no. 307 A).
- The
Court also notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant argued that the Court of Appeal had breached his Convention
rights as it had disregarded the statute of limitations in respect of
the implementation of the measure taken against him.
- The
Government contested that argument. They argued that the applicant
should have been able to foresee that he risked the annulment of his
driving licence as the measure was clearly prescribed both in the old
law and in the new law and there was no time-limit for the
authorities to apply that measure. Therefore, they disagreed with the
applicant’s claims that a heavier penalty had been imposed on
him because of the application of the new law.
2. The Court’s assessment
- The
Court makes reference to the well-established principles developed in
its case-law in the context of Article 7 of the Convention (see,
notably, Kokkinakis v. Greece, 25 May 1993, § 52, Series
A no. 260 A; Dragotoniu and Militaru-Pidhorni v.
Romania, nos. 77193/01 and 77196/01, §§ 33-38, 24 May
2007; Kafkaris v. Cyprus [GC], no. 21906/04, §§
139-141, ECHR 2008 ...; Sud Fondi S.r.l. and Others v. Italy,
no. 75909/01, §§ 105-110, 20 January 2009; and
Scoppola v. Italy (no. 2) [GC], no. 10249/03, §§
92-109, 17 September 2009). It reiterates that Article 7 of the
Convention requires that an offence must be clearly defined in law,
that the law must be predictable and foreseeable and both prohibit
the retrospective application of the more stringent criminal law to
the detriment of the accused and guarantee the retrospective
application of the more lenient criminal law (Scoppola (no. 2),
cited above, §§ 93 and 109).
- In
the instant case, the Court notes that under the Emergency Ordinance
the annulment of the driving licence was no longer left to the
police’s discretion, but became automatic for cases like the
applicant’s (contrast Coëme and Others,
cited above, § 149; mutatis mutandis, Jamil v. France,
8 June 1995, § 32, Series A no. 317 B; and M.
v. Germany, no. 19359/04, §§ 127-128, 17
December 2009.
- It
follows that in applying the new law the authorities deprived the
applicant of the possibility not to have this measure taken against
him, a possibility that had been opened on the date when he had
committed the acts in issue.
- Given
the passage of time between the date of the acts and the imposition
of this penalty, as well as the lack of any action by the police
during this time, it is reasonable to expect that the applicant was
comforted by the thought that the police had decided not to annul his
driving licence.
- In
addition, the Court notes the lack of any mention in the new law as
to the possibility of retroactive application. Therefore, the
applicant could not have foreseen that the new law might be applied
to him.
- It
follows that in automatically imposing this penalty, ten years after
the facts, by virtue of a new law which lacked foreseeability, the
authorities (the police and the courts) made the applicant’s
situation worse and thus breached the principle of non-retrospective
application of criminal law to the detriment of the accused.
There
has accordingly been a violation of Article 7 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the Court of Appeal
had made an erroneous interpretation of the applicable laws, in
contravention of his right to a fair trial as provided for in Article
6 § 1 of the Convention.
- Both
parties submitted observations on this complaint.
- Having
regard to the finding relating to Article 7 of the Convention (see
paragraph 31 above), the Court considers that this complaint is
admissible, but that it is not necessary to examine whether, in this
case, there has been a violation of Article 6 of the Convention (see,
among other authorities, Bota v. Romania, no. 16382/03, §
59, 4 November 2008).
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO
THE CONVENTION
- The
applicant lastly complained that the final
decision of 12 July 2005 had infringed his property rights
guaranteed by Article 1 of Protocol No. 1 to the
Convention.
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
enshrined in Article 1 of the Protocol.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant considered that he had incurred both
pecuniary and non pecuniary damage and asked the Court to decide
the amount.
- The
Government asked the Court not to award damages to the applicant as
he had failed to quantify and substantiate his claims, as required by
Rule 60 of the Rules of Court.
- The
Court notes that the applicant did not make a quantified request for
pecuniary damages and failed to substantiate such a claim. It
therefore rejects the claim made in respect of pecuniary damage.
However, it awards the applicant EUR 3,000 in
respect of non pecuniary damage.
B. Costs and expenses
- The
applicant did not claim any amount under this
head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning Articles
6 § 1 and 7 of the Convention admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
7 of the Convention;
- Holds that there is no need
to examine the complaint under Article 6 § 1 of the
Convention;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months of the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, EUR 3,000 (three thousand euros), to be
converted into the respondent State’s national currency at the
rate applicable on the date of settlement, plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of
the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 24 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall Registrar President
